This thesis is a doctrinal analysis of the legislation and case law in Australia regulating destruction of the fetus in the contexts of third party crimes against the pregnant woman, abortion, and conscientious objection by doctors to participating in abortion. Its aim is to consider whether there is a consistent position in Australian law regarding the legal status of the fetus and when its destruction is lawful.
This thesis examines the dichotomy present in the criminal law's characterisation of the pregnant woman and the fetus as one entity when the fetus is destroyed through an assault on the pregnant woman, and separate entities where the child is destroyed when it is capable of being born alive. It also considers the dichotomy present in negligence laws that have developed a maternal duty of care to the unborn, yet respects the competent pregnant woman's refusal of medical treatment where such refusal may cause indirect harm to the fetus. Finally, this thesis examines and critiques the regulation of abortion in Australia. In analysing abortion laws, this thesis highlights the disparate approach taken by each jurisdiction as to what factors are relevant to justifying abortion. It also examines when a doctor is obliged to participate in abortion, notwithstanding any conscientious objection, and considers what this says about the values embedded in these laws.
Ethical relativism in the law is fundamental in a society where social practices require destruction of the fetus. This thesis concludes that in Australian law, the legal status of the fetus is relative and subject to change depending on the context of its destruction, as well as factors intrinsic to it. Despite the apparent confusion in our laws regarding what the fetus is and when it is lawful to destroy it, all jurisdictions share a commitment to deny the fetus legal personhood and maintain its relative status so that laws can permit its destruction where the lawmaker sees fit.

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